Take a look at the destruction wrought by severe weather incidents such as a tornado. Although few houses, regardless of design, can survive a direct hit, even a glancing storm can level a mobile home or other poorly built structure. The same is true with severe encounters in LE. Can the structure or foundation you and your agency have built withstand the confrontation? Is the structure conducive to winning?
The Three Sides
Policy: Let's use an equal lateral triangle as our design structure, arguably the strongest of all geometric shapes. The first side of our structure is Policy. Policy indicates to the troops how the agency and the officers should conduct their business. Policy is a guide for officers. Policy must be in compliance with the law. Agencies oftentimes make a policy which is stricter than the law. They then set the stage where an officer may have a perfectly legal use of force which violates policy.
When an officer violates policy they can be subject to discipline up to and including termination. What happens when an agency violates its own policy? Absolutely nothing, at least it appears so on the service. There is a cause and effect for this violation however. Ripples are caused in the organization which can adversely affect morale, work production, trust and more. Further an agency's violations will be brought up in any civil litigation.
Policy "practice" indicates how an agency actually conducts business versus their written policy. If there is a deviation between the two, then the "unwritten policy" is ipso-facto, the agency policy.
I've seen officers disciplined and criminally charged when an agency did not follow their own policy in a use of force investigation.
Let’s examine the use of deadly force against a subject driving a motor vehicle. Policies such as those which forbid officers from firing at subjects in vehicles unless they present a deadly threat other than just the car, i.e. a suspect in the car firing at the officer, create a problem to the officers and agency. Recently an officer was pinned between the suspect’s car and another vehicle when the suspect intentionally rammed his and he was trapped and seriously injured. Based on a strict interpretation of a “shall not fire at/into a suspect’s vehicle,” policy, this officer would be unable to shoot at the suspect in an attempt to free himself. How about a spree killer? Suspect A) is at a high school and has killed/wounded several students. He runs to his car and is heading to the elementary school across the street to attack those children. Would an officer be able to shoot at this suspect once he entered the car, per policy? The problem with these types of policy restrictions versus following the law i.e. Graham v. Connor and Tennessee v. Garner is that we can always find a set of circumstances in which we would not apply them. Are we really not using policy to address a training issue in this case?
Leadership: The next side of the triangle is Leadership. Quite honestly the concepts of "taking care of the troops" is holding them to a high standard but looking out for their welfare. As a leader you must ensure that your officers have the tools they need to win on the street. Those tools include training, proper policy, equipment and the confidence of your officers that if they do the right thing, you will back them up.
In this regard, proper focus is vital in use of force investigations as well as supervisor competency. I've worked in defense of officers improperly charged with felonies when a supervisor focused on a violation of policy versus whether the core legal transaction in the use of force was lawful. Unimportant issues which don't impact the actual core transaction oftentimes crop up as do issues with tactics. Does it really matter in a shooting with an armed suspect if the officer should have waited for back-up? How about if they are using their own holster or an agency issued? Trainer Brian Willis has applied Lou Holtz’s concept of WIN – What’s Important Now? to law enforcement. To apply this concept to leadership post use of force incident, are tactics, tools or techniques important? I would submit that the real question is, “Was the force used within the law?”
We have focused on liability in much of our policy and training over the past several decades. Worried about civil suits, agency administrators oftentimes refuse to allow their officers to use that amount of force which the law allows. But there are two types of liability and financial (civil suits) is only one. The other more insidious liability is political. Law enforcement now finds itself under the microscope of political liability. With uneducated – politicians, political groups and the media attacking and scrutinizing an officer’s actions and pushing prosecutors to indict officers regardless of what use of force law and the facts indicate. There is a trend of chief’s disciplining and prosecutors charging officers with the notion that the officer should “prove their innocence” not that the facts of the case indicate criminal prosecution.
There are many politicians, including some in uniform, who will throw an officer under a bus to attempt to satisfy the political liability posed by anti-police activists and groups.
The result of this political focus and lack of leadership has been a “de-policing” of troubled areas within some communities, reduced activity by officers and poor morale.
Training: The last side of our triangle is training. Training is the lifeblood of an officer and of an agency. Officers survive based on the relevance, realism and repetition of their training programs. We will never have "enough training" as it is a continual process. All of LE struggles with the costs of training and facilities. That said police funerals cost agencies a lot more and not all costs are monetary or can be measured on a budget sheet.
In order to have impact, training must be conducted on a regular basis. One time, in time training is insufficient to save lives, reduce officer and suspect injuries and protect an agency. An agency would be better served by conducting eight one hour training sessions on suspect controls skills than one eight hour block per year. We should examine training from the perspective of criticality and activity. We must train in those areas where mistakes such as death or serious injury may result (firearms and emergency response driving), if our officers make a mistake. We must also train in those areas where our officers get into trouble (laws of arrest, dealing with the mentally ill).
Unfortunately law enforcement training is being driven in most areas by special interests – dealing with subjects with autism and human trafficking, as examples. Although these topics should be dealt with, they can be quickly covered via online training programs or videos versus training time better used to cover more critical areas. Once again, I’m not suggesting that we should cover these topics but they are seldom involved in deaths of officers or subjects and don’t result in litigation.
To protect our officers and our agencies we need to turn this triangle into a solid structure able to withstand attack and capable of giving our officers the competence and confidence they need to win on the street. Let’s not deliver a house made of straw and twigs which won’t withstand the attack of the big bad wolf. Let’s instead deliver a brick house so the “huffs and puffs” or direct hits by suspects and attorneys leaves us intact. The wolf is at the door, let us properly prepare.